Madhya Pradesh High Court
Smt. Revti Jatav vs Smt. Neeta Gupta on 17 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:12712
1 FA-1055-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 17th OF APRIL, 2026
FIRST APPEAL No. 1055 of 2018
SMT. REVTI JATAV AND ANOTHER
Versus
SMT. NEETA GUPTA
Appearance:
Shri S.K. Shrivastava - Advocate for appellants.
Shri P.C. Chandil - Advocate for respondent.
JUDGMENT
This First Appeal under Section 96 of CPC has been filed against
judgment and decree dated 09/04/2018 passed by Second Additional District
Judge, Gwalior in Civil Suit No. 400024/2013, by which suit filed by
plaintiff/respondent for specific performance of agreement/sell dated
12/05/2012 has been decreed.
3. Appellants are defendants who have lost their case from the Court
below.
2. It is fairly conceded by counsel for appellants that execution of
agreement to sell the property in question was duly admitted by
defendants/appellants. Therefore, appellant has nothing to say with regard to
the execution of agreement to sell. However, it is submitted that the Trial
Court has committed a material illegality by holding that plaintiff was ready
and willing to perform her part of contract. It is submitted that plaintiff never
entered in the witness box, but Shri Ankur Shivhare had appeared as a power
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of attorney holder on behalf of plaintiff. In the light of judgment passed by
Supreme Court in the case of Janki Vashdeo Bhojwani vs. IndusInd Bank
Limited and Another , reported in (2005) 2 SCC 217 , it is sub submitted that
since readiness and willingness of plaintiff is always in the mind of plaintiff,
therefore, power of attorney holder cannot prove the readiness and
willingness of the principal.
3. Heard learned counsel for appellant.
4. The Supreme Court in the case of Rajesh Kumar vs. Anand Kumar
and Others, reported in (2024) 13 SCC 80 , has held as under:
“18. In Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [Janki Vashdeo
Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217 : (2005) 123 Comp Cas
154] , it is held that a power-of-attorney holder cannot depose for principal in
respect of matters of which only principal can have personal knowledge and in
respect of which the principal is liable to be cross-examined. It is also held that
if the principal to the suit does not appear in the witness box, a presumption
would arise that the case set up by him is not correct. This Court has discussed
the legal position in the following words in paras 13 to 22: (SCC pp. 222-24)“13. Order 3 Rules 1 and 2CPC empower the holder of power of
attorney to “act” on behalf of the principal. In our view the word
“acts” employed in Order 3 Rules 1 and 2CPC confines only to in
respect of “acts” done by the power-of-attorney holder in exercise
of power granted by the instrument. The term “acts” would not
include deposing in place and instead of the principal. In other
words, if the power-of-attorney holder has rendered some “acts” in
pursuance of power of attorney, he may depose for the principal in
respect of such acts, but he cannot depose for the principal for the
acts done by the principal and not by him. Similarly, he cannot
depose for the principal in respect of the matter of which only the
principal can have a personal knowledge and in respect of which
the principal is entitled to be cross-examined.
14. Having regard to the directions in the order [Janki Vashdeo
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Bhojwani v. Indusind Bank Ltd., (2004) 3 SCC 584 : (2004) 119
Comp Cas 133] of remand by which this Court placed the burden
of proving on the appellants that they have a share in the property,
it was obligatory on the part of the appellants to have entered the
box and discharged the burden. Instead, they allowed Mr
Bhojwani to represent them and the Tribunal erred in allowing the
power-of-attorney holder to enter the box and depose instead of
the appellants. Thus, the appellants have failed to establish that
they have any independent source of income and they had
contributed for the purchase of the property from their own
independent income. We accordingly hold that the Tribunal has
erred in holding that they have a share and are co-owners of the
property in question. The finding recorded by the Tribunal in this
respect is set aside.
15. Apart from what has been stated, this Court in Vidhyadhar v.
Manikrao [Vidhyadhar v. Manikrao, (1999) 3 SCC 573] observed
at SCC pp. 583-84, para 17 that:
’17. Where a party to the suit does not appear in the witness box
and states his own case on oath and does not offer himself to be
cross-examined by the other side, a presumption would arise that
the case set up by him is not correct….’
16. In civil dispute the conduct of the parties is material. The
appellants have not approached the Court with clean hands. From
the conduct of the parties it is apparent that it was a ploy to
salvage the property from sale in the execution of decree.
17. On the question of power of attorney, the High Courts have
divergent views. In Shambhu Dutt Shastri v. State of Rajasthan
[Shambhu Dutt Shastri v. State of Rajasthan, 1985 SCC OnLine
Raj 501 : (1986) 2 WLN 713 (2)] it was held that a general power-
of-attorney holder can appear, plead and act on behalf of the party
but he cannot become a witness on behalf of the party. He can only
appear in his own capacity. No one can delegate the power to
appear in the witness box on behalf of himself. To appear in a
witness box is altogether a different act. A general power-of-
attorney holder cannot be allowed to appear as a witness on behalf
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of the plaintiff in the capacity of the plaintiff.
18. The aforesaid judgment was quoted with approval in Ram
Prasad v. Hari Narain [Ram Prasad v. Hari Narain, 1997 SCC
OnLine Raj 74 : AIR 1998 Raj 185 : (1998) 3 Cur CC 183] . It was
held that the word “acts” used in Rule 2 Order 3CPC does not
include the act of power-of-attorney holder to appear as a witness
on behalf of a party. Power-of-attorney holder of a party can
appear only as a witness in his personal capacity and whatever
knowledge he has about the case he can state on oath but he
cannot appear as a witness on behalf of the party in the capacity of
that party. If the plaintiff is unable to appear in the court, a
commission for recording his evidence may be issued under the
relevant provisions of CPC.
19. In Pradeep Mohanbay v. Minguel Carlos Dias [Pradeep
Mohanbay v. Minguel Carlos Dias, 1999 SCC OnLine Bom 625]
the Goa Bench of the Bombay High Court held that a power of
attorney can file a complaint under Section 138 but cannot depose
on behalf of the complainant. He can only appear as a witness.
20. However, in Humberto Luis v. Floriano Armando Luis
[Humberto Luis v. Floriano Armando Luis, 1999 SCC OnLine
Bom 579 : (2000) 2 Bom CR 754] on which reliance has been
placed by the Tribunal in the present case, the High Court took a
dissenting view and held that the provisions contained in Order 3
Rule 2CPC cannot be construed to disentitle the power-of-attorney
holder to depose on behalf of his principal. The High Court further
held that the word “act” appearing in Order 3 Rule 2CPC takes
within its sweep “depose”. We are unable to agree with this view
taken by the Bombay High Court in Floriano Armando [Humberto
Luis v. Floriano Armando Luis, 1999 SCC OnLine Bom 579 :
(2000) 2 Bom CR 754] .
21. We hold that the view taken by the Rajasthan High Court in
Shambhu Dutt Shastri [Shambhu Dutt Shastri v. State of Rajasthan,
1985 SCC OnLine Raj 501 : (1986) 2 WLN 713 (2)] followed and
reiterated in Ram Prasad [Ram Prasad v. Hari Narain, 1997 SCC
OnLine Raj 74 : AIR 1998 Raj 185 : (1998) 3 Cur CC 183] is the
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correct view. The view taken in Floriano Armando Luis [Humberto
Luis v. Floriano Armando Luis, 1999 SCC OnLine Bom 579 :
(2000) 2 Bom CR 754] cannot be said to have laid down a correct
law and is accordingly overruled.
22. In the view that we have taken, we hold that the appellants
have failed to discharge the burden that they have contributed
towards the purchase of property at 38, Koregaon Park, Pune from
any independent source of income and failed to prove that they
were co-owners of the property at 38, Koregaon Park, Pune. This
being the core question, on this score alone, the appeal is liable to
be dismissed.”
19. Thereafter, in Man Kaur v. Hartar Singh Sangha [Man Kaur v. Hartar
Singh Sangha, (2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239] , this Court
referred to its earlier decisions including Janki Vashdeo Bhojwani [Janki
Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217 : (2005) 123
Comp Cas 154] and concluded thus in paras 17 and 18: (Man Kaur case [Man
Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239] ,
SCC pp. 522-24)
“17. To succeed in a suit for specific performance, the plaintiff has
to prove: (a) that a valid agreement of sale was entered into by the
defendant in his favour and the terms thereof; (b) that the
defendant committed breach of the contract; and (c) that he was
always ready and willing to perform his part of the obligations in
terms of the contract. If a plaintiff has to prove that he was always
ready and willing to perform his part of the contract, that is, to
perform his obligations in terms of the contract, necessarily he
should step into the witness box and give evidence that he has all
along been ready and willing to perform his part of the contract
and subject himself to cross-examination on that issue. A plaintiff
cannot obviously examine in his place, his attorney-holder who
did not have personal knowledge either of the transaction or of his
readiness and willingness. Readiness and willingness refer to the
state of mind and conduct of the purchaser, as also his capacity and
preparedness on the other. One without the other is not sufficient.
Therefore a third party who has no personal knowledge cannot
give evidence about such readiness and willingness, even if he is
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an attorney-holder of the person concerned.
18. We may now summarise for convenience, the position as to
who should give evidence in regard to matters involving personal
knowledge:
(a) An attorney-holder who has signed the plaint
and instituted the suit, but has no personal knowledge
of the transaction can only give formal evidence about
the validity of the power of attorney and the filing of
the suit.
(b) If the attorney-holder has done any act or
handled any transactions, in pursuance of the power of
attorney granted by the principal, he may be examined
as a witness to prove those acts or transactions. If the
attorney-holder alone has personal knowledge of such
acts and transactions and not the principal, the
attorney-holder shall be examined, if those acts and
transactions have to be proved.
(c) The attorney-holder cannot depose or give
evidence in place of his principal for the acts done by
the principal or transactions or dealings of the
principal, of which principal alone has personal
knowledge.
(d) Where the principal at no point of time had
personally handled or dealt with or participated in the
transaction and has no personal knowledge of the
transaction, and where the entire transaction has been
handled by an attorney-holder, necessarily the
attorney-holder alone can give evidence in regard to
the transaction. This frequently happens in case of
principals carrying on business through authorised
managers/attorney-holders or persons residing abroad
managing their affairs through their attorney-holders.
(e) Where the entire transaction has been conducted
through a particular attorney-holder, the principal hasSignature Not Verified
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to examine that attorney-holder to prove the
transaction, and not a different or subsequent attorney-
holder.
(f) Where different attorney-holders had dealt with
the matter at different stages of the transaction, if
evidence has to be led as to what transpired at those
different stages, all the attorney-holders will have to
be examined.
(g) Where the law requires or contemplated the
plaintiff or other party to a proceeding, to establish or
prove something with reference to his “state of mind”
or “conduct”, normally the person concerned alone
has to give evidence and not an attorney-holder. A
landlord who seeks eviction of his tenant, on the
ground of his “bona fide” need and a purchaser
seeking specific performance who has to show his
“readiness and willingness” fall under this category.
There is however a recognised exception to this
requirement. Where all the affairs of a party are
completely managed, transacted and looked after by
an attorney (who may happen to be a close family
member), it may be possible to accept the evidence of
such attorney even with reference to bona fides or
“readiness and willingness”. Examples of such
attorney-holders are a husband/wife exclusively
managing the affairs of his/her spouse, a son/daughter
exclusively managing the affairs of an old and infirm
parent, a father/mother exclusively managing the
affairs of a son/daughter living abroad.”
20. In a more recent judgment of this Court in A.C. Narayanan v. State of
Maharashtra [A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 :
(2014) 4 SCC (Civ) 343 : (2013) 180 Comp Cas 258] , this Court again
considered the earlier judgments, particularly, Janki Vashdeo Bhojwani [Janki
Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217 : (2005) 123
Comp Cas 154] and having noticed that Janki Vashdeo Bhojwani [Janki
Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217 : (2005) 123Signature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:127128 FA-1055-2018
Comp Cas 154] relates to power-of-attorney holder under CPC whereas in A.C.
Narayanan [A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 :
(2014) 4 SCC (Civ) 343 : (2013) 180 Comp Cas 258] the Court was concerned
with a criminal case. It was observed that since criminal law can be set in
motion by anyone, even by a stranger or legal heir, a complaint under Section
138 of the Negotiable Instruments Act, 1881 preferred by the power-of-
attorney holder is held maintainable and also that such power-of-attorney
holder can depose as complainant.”
Thus, it is clear that the power of attorney holder can always depose in
respect of the acts performed by him, but he cannot depose for and on behalf
of principal in respect of the matter of which only the principal has a
personal knowledge and in respect of which the principal is entitled to be
cross-examined.
5. Before considering the submissions made by counsel for appellant,
this Court would like to consider the conduct of appellant.
6. From the order sheet dated 11/09/2013, it is clear that both the
parties had agreed to enter into a compromise, and accordingly, they sought
some time and the case was taken on next day, i.e., 12/09/2013. On
12/09/2013, a joint application under Order 23 CPC was filed and statements
of the witnesses were recorded. Although it is not mentioned in the order
dated 12/09/2013, but it is specifically mentioned in the subsequent order
sheets like 15/01/2014 and 30/10/2014 that on 12/09/2013, plaintiff had paid
Rs. 6,00,000/- in cash to defendant, and it was agreed that remaining amount
of Rs. 14,00,000/- will be payable at the time of execution of sale deed. It is
clear from order dated 20/01/2014 that on 19/10/2013, plaintiff had given a
banker’s cheque of Rs. 14,00,000/- to defendant and requested to execute the
sale deed, but she did not do that, and accordingly, an application was filed
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under Order 12 Rule 6, Order 15 Rule 1 read with Section 151 of CPC for
execution of sale deed as well as for possession. The application was
opposed by defendant on the ground that the remaining amount of Rs.
14,00,000/- was payable by 07/10/2013 whereas the banker’s cheque was
prepared on 19/10/2013, and therefore, as the plaintiff had failed to perform
her part of contract within the stipulated period, thus the decree cannot be
passed under Order 12 Rule 6 CPC.
7. Since the Trial Court came to a conclusion that by entering into a
compromise, it cannot be said that defendant has accepted the suit of
plaintiff, therefore, application filed under Order 12 Rule 6, Order 15 Rule 1
read with Section 151 was dismissed by order dated 20/01/2014. Thereafter,
it appears that defendant did not return the cash amount of Rs. 6,00,000/-
which was received by her on 12/09/2013, and accordingly, an application
under Section 151 of CPC was filed by plaintiff for refund of the amount,
and by order dated 30/10/2014, defendant was directed to refund the amount
of Rs. 6,00,000/-. Again on 22/01/2015, an application was filed by plaintiff
that in spite of the order dated 30/10/2014, defendant has not refunded the
cash amount of Rs. 6,00,000/-, but it was submitted by defendant that she
has deposited the amount of Rs. 6,00,000/- in the CCD of the Court vide
receipt No. 44131.
8. Thus, it is clear that plaintiff had already paid an amount of Rs.
6,00,000/- in cash and had also offered a banker’s cheque of Rs. 14,00,000/-,
i.e., Rs. 6,00,000/- + Rs. 14,00,000/- = Rs. 20,00,000 i.e., the entire
outstanding consideration amount, but it was on account of adamant attitude
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by defendant in not executing the sale deed even after having entered into a
compromise, it is clear that in fact plaintiff was all the time ready and willing
to perform her part of contract.
9. So far as the contention of defendant that plaintiff never entered in
the witness box is concerned, the same is false. When an application under
Order 23 Rule 1 CPC was filed, plaintiff herself appeared as PW-1 on
30/09/2014 and gave her evidence in respect of the application for
compromise.
10. Since this appeal has been filed primarily challenging the readiness
and willingness of plaintiff as well as on the ground that power of attorney
holder cannot depose for and on behalf of the principal with regard to her/his
readiness and willingness, it is suffice to mention here that plaintiff herself
had appeared before the Trial Court and had deposed about the compromise.
Not only the plaintiff had paid an amount of Rs. 6,00,000/- in cash to
defendant, but had also offered a banker’s cheque of Rs. 14,00,000/-. A
banker’s cheque of Rs. 14,00,000/- presupposes that sufficient amount is
available in the account because it is the duty and liability of the bank to
encash the banker’s cheque.
11. Furthermore, it is clear that although the compromise had failed,
but still the defendant did not repay the amount of Rs. 6,00,000/- which was
received by her in cash voluntarily, but compelled the plaintiff to file an
application for refund of the said amount. In spite of the order dated
30/10/2014 passed by the Trial Court, still again defendant took more than
two months to refund the amount of Rs. 6,00,000/-. Thus, it is clear that in
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fact, defendant had illegally retained the amount of Rs. 6,00,000/- even after
failure of the compromise.
12. Faced with such a situation, counsel for appellant submitted that
since plaintiff is required to prove her readiness and willingness from the
date of institution of suit and even assuming that plaintiff was ready and
willing to perform her contract on and after 12/09/2013, but in absence of
any evidence regarding her readiness and willingness prior to 12/09/2013, it
cannot be said that plaintiff was ready and willing to perform her part of
contract.
13. Heard learned counsel for appellant.
14. Admittedly, application under Order 23 CPC was filed prior to
recording of evidence of the parties. In the plaint, it was specifically
mentioned by plaintiff that she is ready and willing to perform her part of
contract. Before a stage could come to prove the pleadings, the parties had
entered into a compromise and in furtherance of that compromise, not only
the plaintiff had paid an amount of Rs. 6,0o,000/- in cash to defendant, but
also offered a banker’s cheque of Rs. 14,00,000/-. Thus it is clear that
plaintiff was ready and willing to perform her part of contract right from the
date of agreement to sell, but it was the defendant who even after entering
into a compromise resiled from her words.
15. The Supreme Court in the case of Dhananjay Rathi vs. Ruchika
Rathi, decided on 13/04/2026 in Criminal Appeal No(s). 1924 of 2026
(Arising out of SLP (CRL) No(s). 1878 of 2026), has held as under:
“26. This Court in the case of Ruchi Agarwal (supra) was caught up with a
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similar situation wherein the husband performed his part of the compromise
agreed for mutual consent divorce, however, the wife partly performed her
obligations and did not withdraw certain cases. It was argued by the wife that
the said compromise was obtained by the husband and his family through
threat and coercion. This Court therein held that it was difficult to accept the
argument that the compromise was signed under coercion since the wife partly
performed the obligations mentioned thereunder. The relevant portions from
the judgment are reproduced hereinunder:
“7. It is based on the said compromise the appellant obtained a
divorce as desired by her under Section 13-B of the Hindu
Marriage Act and in partial compliance with the terms of the
compromise she withdrew the criminal case filed under
Section 125 of the Criminal Procedure Code but for reasons
better known to her she did not withdraw that complaint from
which this appeal arises. That apart after the order of the High
Court quashing the said complaint on the ground of territorial
jurisdiction, she has chosen to file this appeal. It is in this
background, we will have to appreciate the merits of this
appeal.
8. Learned counsel appearing for the appellant, however,
contended that though the appellant had signed the
compromise deed with the abovementioned terms in it, the
same was obtained by the respondent husband and his family
under threat and coercion and in fact she did not receive lump
sum maintenance and her stridhan properties. We find it
extremely difficult to accept this argument in the background
of the fact that pursuant to the compromise deed the
respondent husband has given her a consent divorce which she
wanted, thus had performed his part of the obligation under
the compromise deed. Even the appellant partially performed
her part of the obligations by withdrawing her criminal
complaint filed under Section 125. It is true that she had made
a complaint in writing to the Family Court where Section 125
CrPC proceedings were pending that the compromise deed
was filed under coercion but she withdrew the same and gave
a statement before the said court affirming the terms of the
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Court and the proceedings were dropped and a divorce was
obtained. Therefore, we are of the opinion that the appellant
having received the relief she wanted without contest on the
basis of the terms of the compromise, we cannot now accept
the argument of the learned counsel for the appellant. In our
opinion, the conduct of the appellant indicates that the
criminal complaint from which this appeal arises was filed by
the wife only to harass the respondents.
9. In view of the abovesaid subsequent events and the conduct
of the appellant, it would be an abuse of the process of the
court if the criminal proceedings from which this appeal arises
is allowed to continue. Therefore, we are of the considered
opinion to do complete justice, we should while dismissing
this appeal also quash the proceedings arising from criminal
case Cr. No. 224 of 2003 registered in Police Station Bilaspur
(District Rampur) filed under Sections 498-A, 323 and 506
IPC and under Sections 3 and 4 of the Dowry Prohibition Act
against the respondents herein. It is ordered accordingly. The
appeal is disposed of.”
(Emphasis Supplied)
27. The case of Anurag Vijaykumar Goel v. State of Maharashtra, reported in
2025 SCC OnLine SC 1611, was also based on an almost identical set of facts.
In that case, the first motion for divorce by mutual consent was moved by both
the parties along with the Settlement Agreement and the same was allowed by
the Family Court. Before moving the Second Motion Petition, the wife resiled
from the settlement agreement. A three-judge Bench of this Court therein
noting down that the marriage has irretrievably broken, granted divorce and
quashed all the proceedings between the parties arising out of the matrimonial
relationship. The relevant portion from the judgment is reproduced
hereinunder:
4. The first motion dated 03.09.2022 for divorce on mutual
consent under Section 13B of the Hindu Marriage Act, 1955
was moved by both the parties along with settlement entered
into between them, which was recorded by the Family Court
on 14.09.2022. But before the second motion, the respondent-
wife resiled from the agreement which prompted the appellant
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to approach the High Court of Bombay for quashing the
criminal proceedings pending before the Metropolitan
Magistrate, 15th Court at Sewree, Mumbai arising out of CR
No. 63 of 2018 dated 19.04.2018. The principal ground raised
before the High Court was the appellant’s withdrawal from the
divorce on mutual consent, which according to the appellant
justified the quashing of the criminal proceedings. The
appellant also moved the High Court of Delhi alleging
contempt insofar as withdrawing from the consent and
refusing to follow it up on the second motion before the
Family Court. A learned Single Judge of the Delhi High Court
punished the respondent for contempt which order was set
aside by the Division Bench on an appeal filed by the
respondent.
XXXX
13. We have already found that the allegations in the
statement of 19.04.2018 based on which the crime was
registered against the appellant inter-alia under Section 498-A
are common-place, banal and vague, without any specific
instances mentioned and filed one year after the admitted
separation of the couple. The High Court in the impugned
order has rejected the contention of the appellant to quash the
criminal proceedings with respect to the agreement having
been resiled from, at the second motion. We cannot fault the
findings of the High Court that the ground raised of the
respondent-wife having withdrawn from her consent on the
second motion, is perfectly in exercise of the statutory right of
the respondent-wife. However, but for a casual reference to
the other grounds set out in the petition, the High Court has
not considered those at all. It was observed peremptorily that
the contrary statements of the witnesses should be tested in a
trial and there is no question of the veracity of the allegations
in the FIR or charge-sheet being considered, at this stage. This
cannot be upheld especially when the statement leading to the
charge-sheet does not have any grounds leading to an
allegation under Section 498-A of the IPC.
14. We have already held, but for marital squabbles blown out
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of proportion there is nothing substantial in the complainant
leading to the registration of crime under Section 498-A.
Reference can be usefully made to the trite principle for
exercise of powers under Section 482 of Cr. P.C. from the oft
quoted decision in State of Haryana v. Bhajan Lal2. Suffice to
refer to one of the grounds laid down by the Constitution
Bench, but with a caveat that there cannot be any precise,
clearly defined and sufficiently channelized and inflexible
guideline or rigid formulae :
“(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirely
do not prima facie constitute any offence or make out
a case against the accused.”
15. The respondent who appeared in person has specifically
taken us through the Division Bench order of the High Court
of Delhi which absolved her from the contempt proceedings;
especially the observation that the attempt of initiating the
contempt is only a coercion to participate in the second
motion for divorce. It was also found that an affidavit of
undertaking recorded at the first motion would crystallise into
an undertaking only if the terms are agreed upon and divorce
is consented to by both the parties at the second motion. We
are quite in agreement with the finding regarding the second
motion, as already observed. But on the question of the
maintainability of contempt proceedings, we need not say
anything further, since it has been informed across the Bar that
there is an SLP filed from the said order and that in the event
of closure of all proceedings under Article 142, the appellant
would not pursue the same.
1 6 . The facts as detailed by us herein above and the
acrimonious relations between the parties for the last 8 years
without any let-up and the multiple legal proceedings pending,
clearly indicate that the relationship has irretrievably broken
down. We are convinced that the invocation of Article 142 is
imperative in the above case to do complete justice to both the
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parties, on being satisfied that the marriage has been rendered
totally unworkable, emotionally dead and beyond salvation as
held in Shilpa Sailesh1. What remains is only the terms on
which the parties could go their separate ways to live their
lives independently, without the yoke of a troubled marriage.
The terms of the settlement agreed upon according to us, does
justice to the estranged wife and does not unduly burden the
husband.
XXX
21. We hence quash the criminal proceedings initiated as CC
No. 136/PW/2018 pending before the Metropolitan
Magistrate, 15thCourt at Sewree Mumbai for offence
punishable under Section 498-A, 406 r/w Section 34 of the
IPC. We also allow the application filed under Article 142 of
the Constitution of India dissolving the marriage between the
appellant and the second respondent finding the marriage to
have irretrievably broken down, in the best interest of both the
parties and for doing complete justice, but subject to the
following terms:
I) The appellant shall deposit the entire arrears to the Society
as on today and upto 1st September, 2025, with the Society as
the maintenance charges for the apartment namely A-52,
Kalpataru Habitat, Dr. S.S. Rao Road, Mumbai, alongwith the
two car parking areas upon which the Society shall give a no-
encumbrance certificate to the appellant as also issue the
ownership certificate in his name. II) Along with the above
documents the appellant shall execute a gift deed on or before
30.08.2025 on any date informed by written notice; by the
appellant to the respondent, with due acknowledgment taken.
III) We have seen from the records that the draft of the deed
was exchanged between the parties and both the appellant and
the respondent No. 2 shall be present before the jurisdictional
Registrar for execution and registration on the date notified.
IV) If the respondent No. 2 does not turn up on the said date,
the jurisdictional Registrar shall acknowledge and record the
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presence of the appellant and in that event the appellant and
the respondent shall be present on 15.09.2025 before the
Registrar for execution of the deed.
V) If the appellant does not comply with the above, then the
order of divorce shall not come into effect. However, if the
respondent does not present herself on the date notified by the
appellant and on such failure even on the date specified by us,
the divorce shall come into effect.
VI) All proceedings, civil and criminal, initiated by the parties
to the marriage now dissolved, in relation to or arising out of
such marriage, shall stand closed. There shall also be no
further proceedings, both civil and criminal instituted, by the
respective parties, on any aspect arising out of in relation to
the marriage.
22. The Criminal Appeal stands allowed along with the
application under Article 142 of the Constitution of India
dissolving the marriage between the appellant and the second
respondent on the ground of irretrievable break down, subject
to the terms and conditions specified above. All proceedings
pending between the parties shall stand closed and there shall
be no further proceedings initiated by either parties, relatable
to their marriage, which stands dissolved by this judgment, on
the terms and conditions being complied with.”
(Emphasis Supplied)
28. Again coming to the facts of the case, even at the cost of repetition, we
would like to mention that as per the Settlement Agreement, the Appellant-
Husband was to pay 75,00,000/- as first installment of the final settlement
amount along with a sum of 14,00,000/- for purchase of the car, both of which
had been complied with. The Appellant-Husband has also returned the
jewellery items as per APPENDIX A to P to the Respondent-Wife. The
Respondent-Wife, as part of her obligations under the Settlement Agreement,
transferred 2,52,38,794/- to the Appellant-Husband at the time of filing the
First Motion Petition.
29. However, the Respondent-Wife refused to honour the terms of the
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Settlement Agreement and refused to sign the Second Motion Petition stating
that she had withdrawn her consent from the divorce. Though it is well within
the law, for any party, to withdraw consent at any stage before grant of divorce
by mutual agreement, however, in case a compromise deed or a settlement
agreement has been entered in between the parties regarding the full and final
settlement of their
disputes, then in that case it is not open for the party to step back from the
terms and conditions so arrived between them.”
16. The Supreme Court in the case of Gimpex (P) Ltd. v. Manoj Goel ,
reported in (2022) 11 SCC 705 , has held as under:
“41. When a complainant party enters into a compromise agreement with the
accused, it may be for a multitude of reasons — higher compensation, faster
recovery of money, uncertainty of trial and strength of the complaint, among
others. A complainant enters into a settlement with open eyes and undertakes
the risk of the accused failing to honour the cheques issued pursuant to the
settlement, based on certain benefits that the settlement agreement postulates.
Once parties have voluntarily entered into such an agreement and agree to
abide by the consequences of non-compliance of the settlement agreement,
they cannot be allowed to reverse the effects of the agreement by pursuing
both the original complaint and the subsequent complaint arising from such
non-compliance. The settlement agreement subsumes the original complaint.
Non-compliance of the terms of the settlement agreement or dishonour of
cheques issued subsequent to it, would then give rise to a fresh cause of action
attracting liability under Section 138 of the NI Act and other remedies under
civil law and criminal law.
* * *
49. Once a settlement agreement has been entered into between the parties, the
parties are bound by the terms of the agreement and any violation of the same
may result in consequential action in civil and criminal law.”
17. Further, the Supreme Court in the case of Dhananjay (supra), has
carved out an exception where a party can resile from the settlement
agreement only if he successfully demonstrates that the said settlement
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agreement was procured by force, fraud or undue influence. The party can
also resile from the settlement agreement on account of non-fulfillment of
any of the conditions by the opposite party as set out in the settlement
agreement.
18. In the present case, not only a cash amount of Rs. 6,00,000/- was
paid but a banker’s cheque of Rs. 14,00,000/- was also offered, and without
claiming any fraud or coercion, defendant refused to honor her settlement.
19. Since in this case this Court is merely concerned about the
readiness and willingness on the part of plaintiff, therefore, the only question
for consideration is as to whether the conduct of parties, as enumerated
above, is sufficient to decide the question of readiness and willingness or not.
The words “readiness” and “willingness” are two different words and they
have different connotations. The word “readiness” necessarily means the
availability of funds, and “willingness” means a desire of the party to
perform its part of contract, or in other words, in a given case, a party, who is
in possession of sufficient funds, may not be willing to perform his part of
contract for the reasons best known to him. Therefore, availability of funds
and the desire or willingness of the party are two different aspects which are
to be proved by defendant.
20. In the present case, so far as the availability of the fund is
concerned, it is clear that entire consideration amount of Rs. 20,00,000/- was
offered by plaintiff in the Court itself. In that process, an amount of Rs.
6,00,000/- was also paid in cash to defendant, which was retained by
defendant illegally for a further period of two months, in spite of the order
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passed by the Trial Court on 30/10/2014.
21. So far as willingness or desire of plaintiff to execute her part of
contract is concerned, the act of plaintiff in offering Rs. 20,00,000/- i.e., a
cash amount of Rs. 6,00,000/- and a banker’s cheque of Rs. 14,00,000/-,
clearly shows that she was in possession of sufficient funds, and said amount
was offered only with an intention to get the sale deed executed.
Accordingly, she had also filed an application under Order 12 Rule 6 CPC
for drawing a decree in her favor, thereby directing the execution of sale
deed.
22. Under these circumstances, this Court is of considered opinion that
plaintiff was ready and willing to perform her part of contract and in fact, it
was the defendant who was raising all sorts of hurdles in executing the sale
deed.
22. No other argument is advanced by counsel for appellants.
23. Accordingly, no case is made out for interference and ex-
consequenti, judgment and decree dated 09/04/2018 passed by Second
Additional District Judge, Gwalior in Civil Suit No. 400024/2013 is hereby
affirmed.
24. Appeal fails and is dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
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Signed by: ALOK KUMAR
Signing time: 22-04-2026
02:14:00 PM